Abstract
Since the founding of PRC, the Party and the State initiated the work for the enactment of Civil Code for four times respectively in 1954, 1962, 1979 and 2001. No actual effect was achieved in the first and second times of the enactment for various reasons. When the third time of the enactment was initiated, owing to the fact that China just entered into the new period of reform and opening up, the conditions for the enactment of a complete civil code were not satisfied.
This chapter is derived in part from an article published in the Peking University Law Journal, 5:2, 387–429 (2017), available online: https://www.tandfonline.com/doi/full/10.1080/20517483.2017.1427184.
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- 1.
Zhang (2017b).
- 2.
Li (2017).
- 3.
According to the search of the Writer in CNKI, The earliest scholars who proposed the analogy of “wholesale” and “retail” in the doctrine may be the late Professor Cai Dingjian. He thought: “In the legislative approach, we should ‘retail’ other than ‘wholesale’. For those social relations that could have been adjusted by uniform law, due to the maturity of the different parts of these social relations and the urgency of the actual needs is different, Where there is more mature conditions and more urgent needs, we should enact the civil single laws, and then codify them into Civil Code.” See Cai (1986).
- 4.
See Liu (1988).
- 5.
Liang (2003).
- 6.
Wu (2011).
- 7.
Yang (2015).
- 8.
Li (2016a), the document at the Fifth Session of the Twelfth National People’s Congress.
- 9.
Due to specific historical reasons, the concept of Property was deemed as a Capitalism concept when General Principles of the Civil Law was drafted. Thus, Section 1 of this Chapter uses the phrase of “Property Ownership and Related Property Rights”.
- 10.
Li (2017).
- 11.
It should be noted that the Tort Liability Law is enacted by the Standing Committee of NPC other than NPC, the relationship between the Tort Liability Law and General Principles of the Civil Law is special. See Wang (2010).
- 12.
Professor Liang Huixing said: “It’s easy to see that there’s some causal relationship between the two times Color Revolution of Ukraine and the Personality Rights Volume of Ukraine Civil Code”. See Liang (2016b).
- 13.
“Seminar on Legislative Proposal of Personality Rights Volume of Civil Code Held in Suzhou Campus”, http://news.sina.com.cn/o/2017-05-28/doc-ifyfqqyh8824254.shtml.
- 14.
Li (2017).
- 15.
- 16.
Li (2017).
- 17.
Li (2006).
- 18.
“The Compiling of Chinese Civil Code: A Historical Emergent Task and Epochal Initiative”, China Law Review Volume, No. 4, 2015.
- 19.
For the detailed discussion about this question, see Wang (2014b).
- 20.
Yang and Yang (2012).
- 21.
According to the legislative custom of specific civil laws of China, if the law is enacted by NPC at March, it generally takes effect on October 1.
- 22.
“The Founding of the Task Group of the Specific Provisions Volumes of Civil Code, and the Task Group Commence to Work Orderly.” https://www.chinalaw.org.cn/Column/Column_View.aspx?ColumnID=82&InfoID=20623. “China Civil Law Forum 2017 Held in Beijing”, http://www.iolaw.org.cn/showNews.aspx?id=59650.
- 23.
Li (2017).
- 24.
Zhao (2012).
- 25.
Including: Interim Regulations of the People’s Republic of China on Punishing Soldiers’ Violation of Duty, The Decision to Severely Punish the Criminals who Severely Damage the Economy, The Decision to Severely Punish the Criminals who Severely Damage the Social Security, Supplementary Provisions on the Punishment of Smuggling, Supplementary Provisions on the Punishing the Crime of Corruption and Bribery, Supplementary Provisions on Punishing State-Secret-Divulgence Related Crime, Supplementary Provisions on Punishing Precious and Endangered Wild Animals Crime, The Decision to Punish the Insult to the National Flag and National Emblem of the People’s Republic of China, Supplementary Provisions on Punishing the Crime of Digging Ancient Cultural Sites and Ancient Tombs, Decision on Punishing Hijacking Aircraft Criminals, Supplementary Provisions on the Punishment of Counterfeiting Trademarks, Decision on the Punishment of Infringement of Copyright, Decision on Punishing Violations of Company Law, On the Decision to Deal with Labor Reformers and Re-education through Labor who Escaped or Re-commit a new crime.
- 26.
Including: Decision on Anti-Drug, Decision on the Punishment of Criminals who Smuggle, Produce, Sell and Disseminate obscene articles, Decision to Severely Punish the Criminals of Trafficking, Kidnapping of Women, Children, Decision on Prohibition of Prostitution and Whoring, Supplementary Provisions on Punishing Tax Evasion and Tax Crimes, On the strict provisions of the organization, delivery of others to steal the country (border) crime, Supplementary Provisions on Severely Punishing the Crime of Organization, delivery of others to steal the country (side), Decision on Punishing the Crime of Destroying Financial Order, Decision on Punishing Fraudulent, Forged and Illegal Sale of VAT Invoices.
- 27.
It is provided in the Legislation Law that: “This Law shall be applicable to the enactment, revision and nullification of laws, administrative regulations, local regulations, autonomous regulations and separate regulations”.
- 28.
Zhang (2017b).
- 29.
“The Full Text of the General Provisions of Civil Law (Draft)”, http://www.npc.gov.cn/npc/flcazqyj/2016-07/05/content_1993342.htm.
- 30.
Wang (2011).
- 31.
See Shi (2017).
- 32.
Li (2017).
- 33.
“Report of the Legal Committee of the 12th National People’s Congress on the Deliberation of the General Provisions of Civil Law of the People’s Republic of China (Draft)”, adopted at the Second Meeting of the Fifth Presidium Meeting of the 12th March 2017.
- 34.
See “Comparative Table Between the Chapter Settings of the General Principles of Civil Law and the General Provisions of Civil Law”, Wang (2007).
- 35.
Liu (2016).
- 36.
“Report of the Legal Committee of the 12th National People’s Congress on the Deliberation of the General Provisions of Civil Law of the People’s Republic of China (Draft)”, adopted at the Second Meeting of the Fifth Presidium Meeting of the 12th March 2017.
- 37.
Equivalent to the Chapter 2 of “Property, Animals” of Volume 1 of the General Provisions, Chapter 3 of Japanese Civil Code and Chapter 3 of Civil Code of Taiwan area of China use the title of “property”.
- 38.
Li (2016b).
- 39.
Yao (2017).
- 40.
Xue (2017).
- 41.
The General Provisions of Civil Law of P.R.C. (Draft) of January 29th 2016 used to set Chapter 8 of “the Exercise and Protection of the Civil Rights”, the first half of “the Exercise of the Civil Rights” is the embryonic form of the second half of the Chapter 5 of “Civil Rights”.
- 42.
It is provided in Article 2 of General Principles of the Civil Law that: “The Civil Law of the People’s Republic of China shall adjust property relationships and personal relationships between civil subjects with equal status, that is, between citizens, between legal persons and between citizens and legal persons.” While it is provided in Article 2 of the General Provisions of Civil Law that: “The Civil Law shall adjust the personal relationships and the property relationships between civil subjects with equal status, that is, between natural persons, between legal persons and between unincorporated organizations.” In comparison, the two legislations exchange the order of the personal relationships and the property relationships. See Xu (2002).
- 43.
It is provided in Article 113 of the General Provisions of Civil Law that: “The property rights of civil subjects enjoy the equal protection of law.” This article is applied to all types of property rights. But from the source of the article, this would have been the provisions of property rights. See the analysis later.
- 44.
- 45.
It is provided in Article 54 of General Principles of the Civil Law that: “A civil juristic act shall be the lawful act of a citizen or legal person to establish, change or terminate civil rights and obligations.” It is provided in Article 133 of the General Provisions of Civil Law that: “A civil juristic act shall be the act of civil subjects to establish, change or terminate civil rights and obligations through intention expressed”.
- 46.
See Dieter (2007).
- 47.
Zhang (2017b).
- 48.
The Unnamed Agency was provided in The First Deliberation Draft to the Third Deliberation Draft, but was deleted at the final deliberation of NPC.
- 49.
Wang (2017c).
- 50.
Yao (2017).
- 51.
Yang (2017a).
- 52.
Zhang (2017c).
- 53.
Wang and Guan (2017).
- 54.
Li (2017). “Report of the Legal Committee of the 12th National People’s Congress on the Deliberation of the General Provisions of Civil Law of the People’s Republic of China (Draft)”, adopted at the Second Meeting of the Fifth Presidium Meeting of the 12th March 2017.
- 55.
Wang (2017b).
- 56.
See Shi (2017, p. 453).
- 57.
Liang (2017a).
- 58.
Guan (2016).
- 59.
“Report of the Legal Committee of the 12th National People’s Congress on the Deliberation of the General Provisions of Civil Law of the People’s Republic of China (Draft)”, adopted at the Second Meeting of the Fifth Presidium Meeting of the 12th March 2017.
- 60.
See Shi (2017, pp. 42–45).
- 61.
Chen (2016).
- 62.
Yang (2015a).
- 63.
Yao and Liang (2016).
- 64.
Zhang (2017a).
- 65.
Chen (2017b).
- 66.
Li (2017).
- 67.
Liu (2016).
- 68.
Xia (2017).
- 69.
See Shi (2017, p. 106).
- 70.
Yang (2017b).
- 71.
See Shi (2017, p. 35).
- 72.
See Shi (2017, p. 66).
- 73.
Wang (2017d).
- 74.
Liang (2016a).
- 75.
It is provided in Article 5 of the Succession Law that: “Succession shall, after its opening, be handled in accordance with the provisions of statutory succession; where a will exists, it shall be handled in accordance with testamentary succession or as legacy; where there is an agreement for legacy in return for support, the former shall be handled in accordance with the terms of the agreement”.
- 76.
Qin (2016).
- 77.
About this constitutionality controversy, see Wang (2006).
- 78.
Allan (2005).
- 79.
Zhang (2017b).
- 80.
Li (2016a), the document at the Fifth Session of the Twelfth National People’s Congress.
- 81.
The legislative expression based on the political determination of the Opinions on Protecting Property Rights actually responds the core controversy of the constitutionality of the Real Rights Law, avoids the political controversy of the future possible amendment of the Article 12 of the Constitution. See Wang (2006).
- 82.
笔者个人建议是将 “债法总则” 的内容与《民法总则》上 “民事责任” 章合并, 规定为《民法典·总则编》的 “债与责任” 章. 参见王竹: 《民法典起草实用主义思路下的 “债法总则” 立法模式研究,《四川大学学报》(哲学社会科学版) 2012 年第 3 期. The Writer’s suggestion is to combine the contents of the General Provisions of Obligation Law and the Chapter of “Civil Liabilities”, so as to form a new Chapter of “Obligations and Liabilities” in the General Provisions Volume of Civil Code. See Wang (2012).
- 83.
Wang (2017b).
- 84.
Wang (2017a).
- 85.
Zhu (2017).
- 86.
People’s Court of Gu Lou District of Nan Jing City: The Civil Judgment of the First Instance of the Dispute of Personal Injury Compensation between the Plaintiff Ms. Xu and the Defendant Mr. Peng (2007) Gu Civil Court of 1, Number 212.
- 87.
See Shi (2017, p. 437).
- 88.
See Wang Yaxin: “fact of judgment”, “fact of media” and society in the transforming stage reflected by civil judicature, Cross-Strait Law Review, No. 24. Wu Zeyong: “The boundary of the Free Evaluation of the Evidence”, Cross-Strait Law Review, No. 30.
- 89.
See Wang (2009).
- 90.
Wang (2014a).
- 91.
Li (2014).
- 92.
Translated by Chen (2010).
- 93.
See Shi (2017, p. 438).
- 94.
Liang (2017b).
- 95.
It is provided in Paragraph 3 of Article 182 in the General Provisions of Civil Law that: “The measures in a Act of Rescue is taken improperly or exceeding the necessary limits, causing the harm which should have been avoided, the actor of Rescue shall bear the proper civil liabilities”.
- 96.
“Report of the Legal Committee of the 12th National People’s Congress on the Deliberation of the General Provisions of Civil Law of the People’s Republic of China (Draft)”, adopted at the Second Meeting of the Fifth Presidium Meeting of the 12th March 2017.
- 97.
Chen (2017a).
- 98.
Reputation Dispute of PENG Jiahui vs. China Narrative, the Gazette in the Supreme People’s Court, 2002.
- 99.
“The Supreme People’s Court publishes 4 Typical Cases about the Protection of the Personality Rights and Interests of Heroes and Martyrs like Langya Shan Five Heroic Men”, October 19th 2016.
- 100.
See Article 2 of the Regulation of Martyr Praise and Article 2 of the Regulation of Military Pensions Priority.
- 101.
See Paragraph 2 of Article 8 of the Ordinance of the Reward for the People’s Police and Paragraph 1 of Article 8 of the Ordinance of the Discipline for People’s Liberation Army.
- 102.
See Shi (2017, p. 440).
- 103.
The common interests of the Name shared by the Heroes and Martyrs, should be interpreted as the honorary title of the same hero martyr group, the image, reputation and honorary title are co-owned. See Yang (2007).
- 104.
It is provided in Paragraph 1 of Article 55 of the Civil Procedure Law that: “For the act of damaging the social public interests such as environment pollution and infringement upon multiple consumers, the statutory organs and related organizations may bring a lawsuit to the People’s Court.” The newly added Paragraph 2 in 2017: “If the People’s Procuratorate find the facts of damaging the social public interests such as destruction of the ecological environment and resource protection, infringement upon multiple consumers in Food and Medicine area, When there is no statutory organs and related organizations or such statutory organs and related organizations refuse to bring a lawsuit, the People’s Procuratorate may bring a lawsuit to the People’s Court. If the statutory organs and related organizations agree to bring a lawsuit, the People’s Procuratorate may support such lawsuit”.
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Wang, Z. (2020). Analysis on the Orientation of the Compilation of the General Provisions of Civil Law and Comment on Its Contents. In: On the Constitutionality of Compiling a Civil Code of China. Springer, Singapore. https://doi.org/10.1007/978-981-13-7900-0_9
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